I. | Substantive International Law - First Part |
5. | THE UNITED NATIONS |
5.2. | General Assembly |
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Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[p. 100] This opinio juris may, though with all due caution,
be deduced from, inter alia, the attitude of the Parties and the
attitude of States towards certain General Assembly resolutions, and
particularly resolution 2625 (XXV) entitled "Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations". The effect of consent
to the text of such resolutions cannot be understood as merely that of a "reiteration
or elucidation" of the treaty commitment undertaken in the Charter. On the
contrary, it may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselves.
[p. 345 D.O. Schwebel] The significance of the Definition of
Aggression - or of any definition of aggression - should not be magnified. It is
not a treaty text. It is a resolution of the General Assembly which rightly
recognizes the supervening force of the United Nations Charter and the
supervening authority in matters of aggression of the Security Council. The
Definition has its conditions, its flaws, its ambiguities and uncertainties. It
is open-ended. Any definition of aggression must be, because aggression can only
be ultimately defined and found in the particular case in the light of its
particular facts. At the same time, the Definition of Aggression is not a
resolution of the General Assembly which purports to declare principles of
customary international law not regulated by the United Nations Charter. The
legal significance of such resolutions is controversial, a controversy which is
not relevant for immediate purposes. This resolution rather is an interpretation
by the General Assembly of the meaning of the provisions of the United Nations
Charter governing the use of armed force - the use of armed force "in
contravention of the Charter". As such, of itself it is significant.
Weighed as it should be in the light of the practice and the doctrine which the
Nicaraguan Memorial assembles - which may be extensively amplified to the same
effect - the Definition cannot be dismissed. In substance, however, the Court's
Judgment - while affirming that the Definition of Aggression reflects customary
international law - does dismiss both the import of the Definition of Aggression
and the State practice and doctrine which on this paramount point is reflected
by the Definition.